Dayaram Vs. State of M.P.

Dayaram vs State of M.P.

Disposition Revision allowed Court Madhya Pradesh Decided Nov 03, 2004

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Citation: sooperkanoon.com/508835
Court: Madhya Pradesh High Court
Judge: A.K. Shrivastava, J.
Decided On: Nov 03, 2004
Case Number: Criminal Revision No. 1454/2003
Subject: Criminal
Disposition: Revision allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 147; [A.K. Patnaik, CJ, S.S. Jha & A.M. Sapre, JJ] Liability of Insurer - Third party insurance Held, The insured who is a party to the insurance is not a third party for the purpose of Chapter XI of the Act, particularly Section 147 thereof. Thus, any person ot...

Key legal issue: Criminal
Outcome / disposition: Revision allowed
Acts & sections: Indian Penal Code (IPC), 1860 - Sections 409

Parties & Advocates

Appellant / Petitioner

Dayaram

Advocate None

Respondent

State of M.P.

Advocate Sudesh Verma, Govt. Adv.

Legal References

Acts: Indian Penal Code (IPC), 1860 - Sections 409
Reported In: 2005(1)MPHT140; 2004(1)MPLJ524

Excerpt

.....be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4)..........incumbent upon it to prove that property was entrusted to the accused person or he was having dominion over property in his capacity as public servant or in the capacity of person, the list of which has been mentioned in section 409, ipc. thus, the prosecution is duty bound to prove by cogent evidence that money rs. 648/- was entrusted to the applicant. in the present case, prosecution did not examine chhotelal who had paid rs. 648/- to applicant towards house tax since he (chhotelal) had died. however, the fact remain as such whether amount of house lax rs. 648/- was ever entrusted to present applicant. merely because chhotelal had died, would not mean that this fact could not be proved. the prosecution was obliged to examine other witness or should submit application to adduce secondary evidence in regard to the entrustment and payment of house tax by chhotelal to present applicant. since the entrustment of rs. 648/- has not been proved, it is difficult to uphold the conviction under section 409, ipc. apart from this, there is no evidence in order to prove the signature of applicant on ex. p-2. the prosecution has also not examined the signature of applicant by handwriting expert. in this view of the matter, it is also not proved that receipt (ex. p-2) bears signature of present applicant.8. since the entrustment of money rs. 648/- paid by chhotelal to applicant is not proved, according to me, the applicant can not be held to be guilty of offence committed under section 409, ipc.9. in the result, the revision succeeds and is hereby allowed. the conviction of appellant is set aside. the amount of fine, if deposited, be returned to the applicant. the applicant is on bail, his bail bonds are discharged.

Full Judgment

ORDER

A.K. Shrivastava, J.

1. The applicant has preferred this revision against his judgment of conviction and order of sentence passed by the Trial Court and affirmed by Appellate Court convicting him for the offence punishable under Section 409, IPC and sentencing him to suffer rigorous imprisonment of two years and fine of Rs. 1,000/-, in default further R.I. of three months.

2. In brief the case of the prosecution is that applicant Dayaram was serving on the post of 'Rajasva Moharir' (Revenue Clerk) in the office of Municipal Council, Kymore. On 9-6-1989 he collected the house tax and issued receipts but did not deposit the said receipt book nor deposited the amount. On 29-12-90 a written notice was given to applicant to deposit the book but he did not deposit and thereafter it was advertised in newspaper to general public that if any assessee has deposited an amount of house tax and is having receipt issued from the receipt book which was issued to applicant, may submit the original receipt. On 2-2-1991 one Chhotelal Mishra submitted a receipt bearing receipt No. 29 dated 26-7-89. According to prosecution, a sum of Rs. 648/-was obtained from said Chhotelal by applicant, but, the amount was not deposited in the office of Municipality. Thereafter a written report was submitted by Chief Municipal Officer on 6-2-91 to Police Station, Kymore and on the said report a case was registered. During investigation one Mohd. Hanif submitted the receipt book and stock register.

3. After investigating the case a charge-sheet was submitted and applicant was charged under Section 409, IPC. Needless to emphasis, he denied the charge and pleaded complete innocence. The defence of the accused is that he was not serving on the post of 'Rajasva Moharir' (Revenue Clerk) but was serving on the post of 'Rajasva Nirikshak' (Revenue Inspector). According to him he was not informed about the deposit of receipt book and on account of enmity he has been falsely implicated.

4. The prosecution examined its witnesses and the Trial Court on scrutiny of the evidence found that charge under Section 409, IPC is proved against the applicant and, therefore, he was convicted for the offence under Section 409, IPC and was sentenced which I have mentioned hereinabove.

5. The appeal which was preferred by the applicant also met the same result. Hence this revision.

6. In this revision none appeared for the applicant. Perused the record and heard Shri Sudesh Verma, learned Govt. Advocate.

7. If the prosecution is basing its case under Section 409, IPC it is incumbent upon it to prove that property was entrusted to the accused person or he was having dominion over property in his capacity as public servant or in the capacity of person, the list of which has been mentioned in Section 409, IPC. Thus, the prosecution is duty bound to prove by cogent evidence that money Rs. 648/- was entrusted to the applicant. In the present case, prosecution did not examine Chhotelal who had paid Rs. 648/- to applicant towards house tax since he (Chhotelal) had died. However, the fact remain as such whether amount of house Lax Rs. 648/- was ever entrusted to present applicant. Merely because Chhotelal had died, would not mean that this fact could not be proved. The prosecution was obliged to examine other witness or should submit application to adduce secondary evidence in regard to the entrustment and payment of house tax by Chhotelal to present applicant. Since the entrustment of Rs. 648/- has not been proved, it is difficult to uphold the conviction under Section 409, IPC. Apart from this, there is no evidence in order to prove the signature of applicant on Ex. P-2. The prosecution has also not examined the signature of applicant by handwriting expert. In this view of the matter, it is also not proved that receipt (Ex. P-2) bears signature of present applicant.

8. Since the entrustment of money Rs. 648/- paid by Chhotelal to applicant is not proved, according to me, the applicant can not be held to be guilty of offence committed under Section 409, IPC.

9. In the result, the revision succeeds and is hereby allowed. The conviction of appellant is set aside. The amount of fine, if deposited, be returned to the applicant. The applicant is on bail, his bail bonds are discharged.

Same Court & Year Madhya Pradesh · 2004 Same Parties Dayaram vs State of M.P. Same Subject Criminal Same Judge A.K. Shrivastava, J. Acts & Sections Indian Penal Code (IPC), 1860 - Sections 409

Criminal